“If a city can compel citizens to devote half of their property to growing a plant that the citizen does not want and that makes them sick, there is no longer any principled limit to the government’s control over private property”

Today’s edition of “Government is Terrible and Property Rights Are Pretty Much a Joke These Days” comes to you from Missouri.

There, Janice and Carl Duffner challenged a city ordinance requiring them to maintain 50 percent turfgrass. All was fine and well until a busybody reported the Duffners to the city.

Janice Duffner is highly allergic to grass. The couple transformed their yard into a beautiful garden landscape. But, unless the Duffner’s adhere to the city ordinance, they can be fined up to $188,000 or face jail time up to 20 years in the slammer. A totally reasonable punishment for a landscaping violation.

U.S. District Judge John Ross’ 17-page ruling said Janice and Carl Duffner “failed to identify a fundamental right that is restricted by the Turf Grass Ordinance.”

After unsuccessfully suing in state court, the Duffners filed their federal suit in 2016, claiming the ordinance was “unnecessary for the advancement of any compelling or permissible state objective” and “imposes a permanent obligation on the owner to cultivate and maintain that unwanted physical presence on their property for no reason other than that the government commands it.”

…In Ross’ ruling in response to the city’s summary judgment motion, he wrote that the U.S. Supreme Court has ruled that “aesthetic considerations constitute a legitimate government purpose,” and therefore the Duffners failed to prove the ordinance was “arbitrary, capricious” and also failed to prove that it was not “rationally related” to a legitimate government purpose.

The couple argued they had a right to use their “private property in a harmless, lawful manner of the owner’s choosing” and “exclude unwanted persons and things from private property,” Ross wrote. Ross said that claim was too general, and if accepted, could subject “many, if not all, zoning laws … to heightened judicial scrutiny.”

Carl and Janice Duffner are senior citizens who, due to severe grass allergies, converted their entire yard into a beautiful, well-maintained, grass-free flower garden that includes a landscaped hillside and flowers blooming from multiple mulched planting areas that are interspersed with walkways, sitting areas, and two small ponds.

All was well until one of their neighbors complained to the City of St. Peters that the Duffners were not in compliance with a city ordinance that requires residential property owners to devote at least half of their yard to growing and maintaining “turf grass.” According to the ordinance, homeowners who do not grow the city-mandated turf grass can face fines of up to $500 and also 10 days in prison for each and every day they fail to comply with the city’s mandate.

“This is one of the most bizarre laws I have ever seen,” said Dave Roland, the Duffner’s attorney and director of litigation for the Freedom Center of Missouri. “There is absolutely nothing unlawful or harmful about the Duffners’ flowers, yet St. Peters is threatening them with extraordinary fines and decades in prison simply because they choose to grow flowers instead of a plant that makes them sick.”

…“A penalty is unconstitutional under the Eighth Amendment if it is ‘grossly disproportionate’ to the offense it is intended to punish,” explained Jenifer Zeigler Roland, the Freedom Center’s executive director. “The judge acknowledged that the Duffners’ flowers are not illegal, have not harmed anyone, and are not likely to harm anyone, but somehow still concluded that it might be constitutional to fine these senior citizens hundreds of thousands of dollars and to put them in prison for two decades.”

The Duffner’s yard is not dumpy, nor is it an eyesore. It’s incredibly well maintained. Pictures posted by the Freedom Center of Missouri show as much:

Roland concluded:

“If a city can compel citizens to devote half of their property to growing a plant that the citizen does not want and that makes them sick, there is no longer any principled limit to the government’s control over private property,” Dave Roland said. “Likewise, if governments can impose such ridiculous penalties for completely harmless behaviors, the Eighth Amendment is practically useless. We are confident that the Eighth Circuit will reverse this terrible decision.”

That was my immediate thought when I saw the images. Someone is huffed off by Americans having American Flags in their yard. Evidently there is no punishment for that, at least in this community, so go after these old folks for not growing grass.

Yep. I’m thinking it was the red & white stripes, blue field & white stars that caused the complaint to be made. He could always plant the turf grass with an overlay of American flags about every quarter inch.

Before I get flamed as a pinko commie, let me present the disclaimer that I am pro-capitalism, pro-property rights, pro-smaller government conservative.

That being said, the argument that these folks should be exempt from the ordinance because they are ‘allergic to turf grass’ is bogus.

Not all turf grasses reproduce by pollination. As a matter of fact, some of the decorative grasses and flowers they have planted are more likely to produce an allergic reaction by wind blown pollen than any turf grass.

Furthermore, the half acre (or smaller) size of their lot could not possibly provide enough of a buffer to prevent the allergens of their neighbors lots from constantly bombarding them the entire time they are outside nurturing their garden.

If these folks are truly allergic to turf grasses, they could not possibly tend to their garden without full on protective gear such as tyvec suits and respirators.

Their garden is cute. They definitely have an artistic and well developed green thumb. But I call BS on the claim that they are allergic to turf.

Point taken. Article says that they ‘converted their entire yard into a beautiful, well-maintained, grass-free flower garden that includes a landscaped hillside and flowers blooming from multiple mulched planting areas that are interspersed with walkways, sitting areas, and two small ponds’ While not specifying who actually performed the work.

Ostensibly, though, this work was performed so they could enjoy these landscaped walkways, sitting areas, and ponds. Still, if their allergies are that severe, PPE would still be required due to neighboring lots.

Not if it’s a contact allergen, similar to poison ivy. As long as they are not required to walk on it, handle clippings, etc., there’s no problem. You want to cite your “practical experience”; how did you miss that possibility?

I’ll take “because coolway’s an arrogant a$$hole” for a thousand, Alex.

Not stipulated whether the allergy is to airborne or contact allergens. My presumption was airborne, but I concede that contact allergy is possible. Point seems to be moot, however, as they never seemed to argue that her allergy had a bearing on their legal case.

So why did they not argue that the forced planting of an allergen was somehow detrimental to her health and safety? Such and argument could have perhaps attacked the ‘reasonableness’ of the ordinance, but apparently this point was never argued.

They argued that they did not want the turf, not that the turf was toxic to the homeowner.

You sure are good at smelling. You smell the real reason from very far away. I wonder if you smell anything coming from out dear leader?

Perhaps the flags were added as a protest after the enforcement action. Do you know when they were placed? Adding the flags would be one way to bring out the reactionaries.

I am in sympathy with the homeowners. But the flags are not in character with the rest of the garden. The garden is eclectic and asymmetric. The flags are regular and repetitive. The owners already have a flag on a pole. Doesn’t that make the point? I guess not if the point was to make the dispute about something else.

The ordinance is obviously about unruly and untended spaces. The city should find a way to accommodate tended gardens. But your assumption that the enforcement action is about the flags is a knee-jerk reaction and without foundation.

Yes, the root of the problem is Euclid v Ambler, which was wrongly decided 92 years ago. We’ve been suffering from this silliness ever since. One can only hope that if Trump appoints two or three more SCOTUS justices there may be a chance of reversing it.

Think of it this way: would the community tolerate a passed ordinance that prohibited smoking on personal property, simply because the homeowner next door might be allergic?

That (smoking) claim is an occurred claim that has happened, which is a smaller volume than the likely production of pollen that is occurring from the neighbor’s yards.

Now, it’s entirely possible that it is some form of contact allergy with the plant itself, rather than the pollen, in which case the action is then itself reasonable. We don’t know enough from the article set-up to know what the allergy itself is.

For further analysis, Professor Bainbridge has a reasonable analysis from 2003 on the matter from a smoking perspective:

The takeaway by Prof. Bainbridge is this: The mere existence of an externality does not justify legislation, however. In a free society, with limited government and respect for private property rights, at least two conditions must be satisfied before government intervention is warranted. First, my actions must in fact produce external costs. Second, there must be a market failure — that is, people must be unable to solve the problem without government help. Because I’ve conceded the first prong of the test, the merits of public smoking bans comes down to the question of whether the problem can be solved private ordering.

Here, under CERTAIN circumstances, the lack of grass on a yard potentially could create an external cost (dust, or blight if the yard was left bare). However that is not present in this particular case. Basically this is a poorly designed ordinance.

I am not a doctor, and I do not play one on the internet. I am, however, a practical person with practical experience, including having dealt with people in the past that have made unfounded claims of ‘allergies’ in an effort to gain special treatment.

I did not read through the judgement, nor have I researched the case sufficiently to determine exactly what, if any, allergies these folks have. However, if there is indeed a medical condition which would preclude these folks from planting turf grass in their yard, I would expect that evidence of such condition would have been presented to the court.

Please, kind sir, point me to a reference regarding the medical testimony provided by a licensed medical witness in this case.

Origin of the word in Middle English was 1250-1300 AD inherited from Old French, where it did have an “e” but no “d” being jugement which was based on the shortened stem of the Old French word jugier (to Judge) and the word ment

Prior to that, if I understand the translations correctly, it was Iudicium from the early Latin, based on the word Iudico (for “Judge”). My ancient Greek isn’t strong enough to chase the translation back beyond Latin.

It’s like from the end of “Indiana Jones and the Last Crusade:” In the Latin alphabet, Jehovah begins with an I.

My point did not even touch on property rights, so you are ‘missing the point.’

As to the encroachment on property rights argument, they have argued and lost. It turns out that the courts have long held that local governments can have and enforce zoning ordinances, and that those ordinances can also apply to aesthetic issues. Government should not be in the business of arbitrarily and capriciously applying the law, which is exactly what these folks wanted to happen.

The ‘allergy’ issue is a red herring, as they never argued that they should be exempted from the ordinance because of allergies. My whole point was that this was a case of someone saying ‘Look at me, I have allergies! Treat me different from everyone else!’

“If a city can compel citizens to devote half of their property to growing a plant that the citizen does not want and that makes them sick . . .”

Keep an eye out for the ruling in National Institute of Family and Life Advocates v. Becerra, USSC no. 16-1140, which might provide an answer to the citizens in this front yard grass case. NIFFA is about compelled speech; the article is about compelled horticulture. Both are about government arrogance.

“A religious group representing church-run crisis pregnancy centers says the requirement violates the First Amendment’s guarantee of free expression by forcing them to convey a message they strongly oppose.”

NIFFA will one of the flurry of important cases released in the final days of the Court. Predicably RBG will be on the wrong side; that’s a let-it-all-ride type of bet. But we might be surprised with Breyer and Kagan. As to the wise Latina, expect the worse.

“A religious group representing church-run crisis pregnancy centers says the requirement violates the First Amendment’s guarantee of free expression by forcing them to convey a message they strongly oppose.”

The problem with this is that there are some places that have attempted to require “informed consent” brochures of Abortion Clinics. The State is ALREADY compelling speech in the particular area of commerce.

NIFFA is about compelled speech. The problem in that instance is that a LOT of places ALREADY compel one side of that argument to speak a message they don’t agree with. The abortion clinics finally figured out how to attack that “compelled speech” angle, and they’re doing it by saying “well, if WE have to tell OUR clients about adoption services and medical health issues, THEN THEY (the adoption services) should be required to tell their clients about abortion benefits.”

But it’s a false equivalence. There’s no religion on earth that requires you to abort someone else’s child. Therefore, having to tell a woman there are alternatives to abortion doesn’t infringe anyone’s right to freely practice religion.

Is the case about “speech” or is it about “Religion / Religious Expression?”

If the case is about “Speech,” then in order for the action of the State to be a viewpoint neutral regulation, the State either has to require the adoption providers to provide answers/literature on abortion if the State is going to force the abortion providers to provide answers/literature on adoption, because requiring one side of the argument to speak about the other side’s procedures means that the State is advocating a viewpoint that adoption is preferable to abortion.

If the case is about “Religion / Religious Expression” then there’s an even LARGER problem, because now the State is making a value-based judgment on the meaning of life within a religious context for the ABORTION providers, and requiring the abortion providers to convey a message in conformance with a Religion or Religious view that the abortion provider possibly does not subscribe to. If that is the case, then the abortion providers have an even STRONGER argument, given SCOTUS jurisprudence and stare decisis on 1st amendment grounds, in that the State is literally FORCING them to a religious conclusion, and then forcing the abortion provider to CONVEY that Religious conclusion/viewpoint onto their OWN customer.

1. Your comment prompted me to read the cert. petition in National Institute of Family and Life Advocates v. Becerra and some commentary on the case to see if the case is being argued on “free expression” or “free exercise” grounds. Apparently, it is being argued strictly on “free expression” grounds. That makes your “free expression” argument the more relevant one. However, the free expression issues actually being argued in the case are far more complex than the “viewpoint neutrality” issue you raise. The other issues include whether the lower courts’ refusal to apply “strict scrutiny” to the CA statute was error, and, if so, whether statute would fail the “strict scrutiny” test because it fails to use the least restrictive means to accomplish its information-providing goal. I recommend you read these materials.

2. Although “free expression” no longer appears central to the case, your “free expression” comment makes no sense. Contrary to your comment, the state of CA is NOT “making a value-based judgment … for the abortion providers,” nor is it “requiring the abortion providers to convey a message in conformance with a Religion or Religious view that the abortion provider possibly does not subscribe to.” To the contrary, California is in fact requiring the NON-abortion providers to convey a message about abortion that conflicts with their religious beliefs. So if anyone’s religious expression is being trampled on, it’s that of the NON-abortion providers.

I actually hadn’t read anything about the case, and knew only in passing that it even existed that there was a dispute where the Abortion Providers supporters in the Legislature finally had required the Pregnancy Counseling centers to cross-speak about abortion services.

It is unfortunately true that the 1st amendment precludes the regulation of a facility whose sole purpose is to be a charade and lure women from the services they seek. It is also apparently true that said facilities are allowed to lie and mislead including claiming dire medical consequences that are not accepted by reputable medical organizations.

Feel free to deny any of the above – just like the so called crisis centers. The truth is truth no matter how often and how emphatically you claim otherwise.

It is unfortunately true that the 1st amendment precludes the regulation of a facility whose sole purpose is to be a charade and lure women from the services they seek. It is also apparently true that said facilities are allowed to lie and mislead including claiming dire medical consequences that are not accepted by reputable medical organizations.

And there is yellow-troll. It never fails that he shows up and beclowns himself.

Because I’m in a generous mood, let me counter: It is unfortunately true that the Supreme Court of the United States, with no basis in Constitutional Principles or law or original intent, found in a unwritten and certainly unintended “penumbra” and “emanation” a right to preclude the wholly reasonable regulation of ELECTIVE surgical facilities, largely without ANY reasonable plans to address what happens when something goes wrong because their “doctors” can’t (or won’t) get admitting privileges at a local hospital, and facilities whose sole purpose is to be a charade of supporting women’s health, when in truth they are dedicated solely and wholly to terminating the life of an unborn child, on demand of the mother, right up to the moment of birth, by claiming that if the head and neck haven’t been delivered from the body, that constitutes a fetus, regardless of if the child is conscious.

Oh, and then illegally selling the body parts to pad their bottom-line profit. We can’t forget about that.

Maybe you’d like to reconsider your position yellow-troll? Oh, wait, I forgot: you’re a troll, and have no brain. You merely spit back out your talking points given to you.

Let me educate you:

Perhaps you don’t think a statistically significant higher incidence of Breast and Cervical Cancers are “dire medical consequences.” Want to discuss a statistically significant higher rate of depression and mental illness related to the Abortion procedure? Planned Parenthood is DESPERATE not to talk about those statistics.

While you’re there asking them: Why don’t you also go ask Planned Parenthood WHY they don’t do mammorgrams while you’re at it. They’re ALWAYS so careful to say “breast cancer screening” and let the sheeple think that they’re doing something other than doing manual digital exams.

Apparently you’ve never gone through the nightmare of having a neighbor letting his property become ‘distress’, and perhaps one or two others on the block do the same, and suddenly $100k is zapped from the value of your home.

That $100K was never rightfully yours to begin with. It was a gift that your neighbor was giving you, and which he has every right to stop giving you whenever he likes, unless you contracted with him to keep giving it to you in perpetuity.

Think of it this way: Suppose I buy a convenience store specifically because it’s across the road from a popular tourist attraction, and gets lots of customers. The next week the attraction closes down, the tourists stop coming, and my store is worth a lot less. Do I have a right to complain, and compel them to stay open? Of course not. I was free riding on their popularity, and that’s all I’ve lost. I should be grateful they weren’t charging me for all the extra business they used to bring me, and accept it when they stop.

Then they would be in violation of the ordinance in a different manner: that they were not maintaining a form of turfgrass on the 1/2 of the property.

What this requires is a tiny modification of the ordinance. It SHOULD read something simple like “that 1/2 of the usable yard space must be LANDSCAPED, either by turfgrass, or other ground-stabilizing plants.”

What many seem to miss is the fact that the city agreed to issue a variance reducing the amount of turf grass from 50% of the total yard area to 5% of the total yard area, with the stipulation that the grass be placed either in the front yard or the side yard in front of the fence there. The Duffners refused this accommodation and sued the city. They lost in state court, for a variety of reasons, and now they have lost in federal court. So, if they fail to prevail, then they owe the city the fines, which have been accumulating since 2014. Sometimes it is better to accept the deal. Good luck to them.

Things like this happen because people are, understandably, not well versed in city and county ordinances. In this case there is a property maintenance ordinance which specifically states that a certain type of ground cover must be present in a specific percentage of the area of the “yard”. But, it affects everyone equally, so it can not be called arbitrary. And, the local BOA actually offered the Duffners a very generous variance. It is tantamount to placing a border of turf grass around the other plantings in the front yard, or just placing grass on the side of the house and leaving the front yard as is. The Duffners chose to roll the dice for all or nothing. Now, they might have to sell or plant 50% of the yard area with grass.

Your point on the variance to 5% is an important addition to the story. I suppose the family is trying to prove a point. You can fight City Hall, but it is breathtakingly expensive and you usually lose in the end.

They’re going to end up with a few square feet of very, very expensive grass.

“U.S. District Judge John Ross’ 17-page ruling said Janice and Carl Duffner “failed to identify a fundamental right that is restricted by the Turf Grass Ordinance.” The good judge has it backwards. All rights reside in the individual and, under the Constitution, certain powers are granted to the government. He should read Amendment IX.

No, you have it backwards. The FEDERAL government is one of limited and enumerated powers, and any power not specifically granted to it belongs to the states or to the people. State governments are NOT limited to enumerated powers; by default their powers are plenary, and they can make any law they like so long as it isn’t specifically prohibited by the constitution or by federal law.

Remember, the federal government is only so limited because that’s what the states decided to do when they created it. The states themselves were not created by any other entity, so there’s nobody who could have imposed such a limitation on them.

Local governments are created by their state, and it’s up to the state whether to give them limited or plenary powers. If the state granted them only enumerated powers then one could bring a case in state court alleging that they’ve exceeded them. But as far as a federal court is concerned their powers are plenary, so the plaintiff has to point to some specific limitation that they’ve breached. These plaintiffs couldn’t.

No, it is not. The FEDERAL government cannot force someone to buy a product. (Well, actually it can, if one of its enumerated powers lets it do so. The 0bamacare decision says the power to regulate interstate and international commerce does not give it this authority, because not buying something is not commerce.)

But STATE governments certainly CAN force someone to buy a product, since there’s nothing in the US constitution or in any federal law that says they can’t.

“…the U.S. Supreme Court has ruled that ‘aesthetic considerations constitute a legitimate government purpose,’…”

The ordinance under consideration by SCOTUS was probably aimed at commercial properties (in particular, excessive signage) and not at private property. Commercial activities are run by people who voluntarily enter into agreements with various government entities in order to become licensed and to operate businesses. They have volunteered to follow the rules governing their properties.

That was an eminent domain case in D.C. related to the District taking a blighted property. Its use to justify this decision looks like a bit of a stretch if it is used to say there are no limits on a government’s power – if that government uses aesthetics as a rationale.

Commercial activities are run by people who voluntarily enter into agreements with various government entities in order to become licensed and to operate businesses.

Since when does one need a government’s permission merely to engage in commerce? (Answer: since the SCOTUS ruled wrongly on the Slaughterhouse cases. The 14th amendment ought to be read as protecting a fundamental right to do business.)

This looks like a suit on principle, and I applaud them for their efforts, though it must be costing them dearly. So the state can mandate sod, which MUST be maintained, and grown as not to be an eyesore,… forget about the allergy stuff.

I never would have sued, I would have moved. This happens too often with HOA’s, but for a state ordinance to get abused like this is nuts. I don’t care if they pushed it or not. Sad.

A couple of years ago, the city of Richland, Washington was coping with a drought, and imposed watering restrictions and recommended saving water as much as possible. Only a few days later, a family was cited for putting in a xeriscape (as is common in Phoenix), because they did not comply with the rules that required them to have a minimum area of green grass. The ensuing publicity caused the rule to be changed to allow a well-cultivated xeriscape.

Does it ever occur to bureaucrats that while “yes we have the law on our side and we can really stick it to you but if we keep poking. someone is going to roll a Sherman Tank through City Hall and we’re going to kinda deserve it”

No?

Ten days in prison for every day you fail to grow the required lawn grass? This is why you should constantly weed your local homeowners association.

“Marvin John Heemeyer (October 28, 1951 – June 4, 2004) was an American welder and an automobile muffler repair shop owner most known for his rampage with a modified bulldozer. Outraged over zoning disputes, he armored a Komatsu D355A bulldozer with layers of steel and concrete and used it on June 4, 2004 to demolish the town hall, the former mayor’s house, and other buildings in Granby, Colorado. The rampage ended when the bulldozer got stuck in the basement of a Gambles store he was in the process of destroying. Heemeyer then killed himself with a handgun.

Heemeyer had been feuding with Granby officials, particularly over fines for violating city ordinances and a zoning dispute regarding a concrete batch plant constructed opposite his muffler shop.”

Whether it is municipal property standards or Home Owners Association property standards, you always have a conflict sooner or later. When it comes to “ascetic” standards, everyone has different preferences.

But, this case is strikingly different. Here we have a very clear standard for landscaping; a requirement that at least 50% of a residence’s yard space be planted in turf grass. This is not simply a requirement that the landscaping be kept neat and presentable. And, very probably, the Duffners had no idea that this ordinance even existed. So, they lavished a lot of time, effort and money on creating a gigantic flower garden covering the entire yard area of their home. Someone did not like their display and notified the city of a violation of its ordinances. The city, practicing due diligence, investigated the complaint and notified the home owner of the violation. The homeowner availed himself of his due process options and petitioned the city’s Board Of Adjustment for a variance to the requirement that 50% of the yard area be planted in turf grass. The BOA, in an incredible example of fairness, granted a variance to reduce the amount of turf grass required to 1/10th of that stipulated by the ordinance, 5% of the yard area. To keep everyone happy, they required that the turf grass be placed where it could be seen from the street, the front or side yard. Compromise is necessary for life in any society. The Duffners had three options; accept the variance and plant some grass, move to another location with ordinances more in keeping with their likes and dislikes or sue and run the risk of having fines pile up which would have to be paid if they did not prevail in court. They chose the latter and will likely end up losing their home and moving anyway.

The city is not responsible for the position that the Duffners find themselves in, the Duffners are. Just like the gambler in Vegas who lets his entire bankroll ride on red. If it comes up black he loses everything. You gotta know when to hold ’em. Know when to fold ’em. Know when to walk away. And, know when to run.

All of the outraged libertarians posting in this thread, with their outraged comments have been very entertaining. I used to hate HoAs as much as anyone else, but recently I’ve been warming to them.

There is no HoA covering my property or house, which I’m mostly fine with. In the last 10 years or so, people have been fleeing high taxation of Philadelphia and moving here in ever increasing numbers, and they’re bringing their bad habit of parking on the street with them.

We don’t have the giant wide neighborhood streets that you find in Philadelphia, you cannot park your car on our neighborhood roads without blocking traffic. If there were ever an emergency, I doubt they could get a fire truck in to my house without towing some of those vehicles.

Add that to the constant dirt bike traffic up and down the street, and a neighbor who thought it would be cool to convert his front yard into a parking lot and park heavy industrial equipment on it, this is almost too much.

A HOA is an abomination. It is not a government entity, but rather a non-governmental association which is given the power to regulate the activities of persons living in a specific area, by those people. It usually does this through deed restrictions. And, it always causes trouble. Not only does it cause individuals problems through over-zealous authoritarian actions, but it places an unwelcome liability burden upon its members, for its actions. It is simply NOT a good idea to buy and live in any development which has an association which has any power over the individual home owner.

In what way is a HOA different from a condo board, which has the same powers over units in the building to which it has an underlying title? A development with a HOA is the same thing; when you buy your unit from the developer, it comes with the HOA’s underlying title to the development as a whole, and thus its right to dictate what you do with your unit.

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